Fired drivers say Unitrans’s settlement offer is a slap in the face

The Transport and Allied Workers’ Union has threatened further litigation against Unitrans Fuel and Chemical for a “slap in the face” offer it has made to the 94 drivers it unlawfully fired six years ago.

It has been three months since the Constitutional Court ruled against Unitrans but the multinational appears to be in no hurry to rectify the wrong it did when it unlawfully fired the drivers.

In September, the court ruled that the company should reinstate them. The company was also ordered to give the drivers back pay.

Last week, Unitrans offered to pay the drivers R170 000 each and also stipulated, contrary to the ruling, that it would only reinstate the drivers who “qualified”.

The drivers said they thought the judgment would bring finality to their dire situation. Instead they had been made a paltry offering, which they described as a slap in the face, given that the company probably owes them more than R500 000 each.

Referring to Unitrans’s offer, the union’s general secretary, Zack Mankge, was scathing: “The back pay of R170 000 per member constitutes an insult to our members and is accordingly rejected.”

If the correspondence between the union and Unitrans is anything to go by, the fight is poised to heat up.

On November 22, Unitrans held a meeting with the union to discuss a way forward, because previous discussions, which included an offer of R150 000 a driver, had deadlocked.

Three days later, Unitrans made an offer to the drivers who qualified for “potential reinstatement”. “These members who qualify for potential reinstatement shall be made an offer of reinstatement by Unitrans Supply Chain Solutions (Pty) Ltd for the Pick n Pay contract,” the letter reads.

It outlines the company’s financial considerations, stating that it would offer the drivers R170 000 each – but only those who did not want to be reinstated or who were disqualified.

“The company is willing to make a once-off ex gratia payment of R170 000 to each member who either doesn’t wish to be reinstated or is disqualified from reinstatement.”

The union responded by referring the company to the judgment, which clearly states that every worker must be reinstated, and that they must be remunerated for the full six years they were out of work.

“There is no possible or potential reinstatement because the Constitutional Court orders did not make any reference of any potential or possible reinstatement, but everyone was unconditionally reinstated,” reads Mankge’s response.

He said the Pick n Pay contract contained less favourable conditions, which was also against the judgment, and that the union would not sit by idly. “Finally, we wish to advise that the union will do everything in its power to procure compliance with court orders, even if it requires further litigation in the circumstances,” Mankge wrote.

Two weeks ago, the drivers said the company was still trying to figure out how “to implement a very simple judgment”, which was a delaying tactic to benefit itself.

The drivers and their families have to bear the brunt of Unitrans’s lack of will to resolve the issue. Some don’t have sufficient food, and some of their children have either been unable to complete their studies or can’t afford to study.

Unitrans had not responded to questions at the time of publication.

Unitrans ‘is in breach of an order’

Despite a Constitutional Court judgment, multinational Unitrans has failed to correct its unlawful and what the judges called an “automatically unfair” dismissal of 94 drivers.

Advocate Tembeka Ngcukaitobi said the judgment was severe, signifying that the employees were dismissed for reasons that are prohibited by law.

“The second notable feature is that all dismissed employees were supposed to be reinstated, backdated to November 2 2010. Reinstatement means that the employees must be taken back to the positions they occupied, as if the dismissals had not taken place, on November 2 2010,” he said.

The judgment was simple and had no conditions attached.

Referring to the company’s most recent offer to the dismissed drivers, he said: “The problem with the letter from the employer is that it makes the re-employment conditional: employees with ‘criminal records’ are excluded. And so are those who have ‘reached the retirement age’ or are ‘medically unfit’. It also purports to offer reinstatement on a ‘without prejudice basis’.

“These conditions are ex facie in breach of the court order. The employer may not place conditions to the reinstatement.”

Unitrans was clearly in violation of the court order. “That leaves two options for the employees. The first is to ask for an order of contempt of court against the employer, in relation to the failed re-employment. The second, if the employer has not paid the lost wages since 2010, the employees could quantify their financial losses and obtain a warrant of attachment against the employer’s property to be sold in execution.”

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Athandiwe Saba is a multi award-winning journalist who is passionate about data, human interest issues, governance and everything that isn’t on social media. She is an author, an avid reader and trying to find the answer to the perfect balance between investigative journalism, online audiences and the decline in newspaper sales. It’s a rough world and a rewarding profession.

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